Tuesday 2nd
February, 1999.
Phillip Clay, Appellant,
against Record No. 2227-97-1
Circuit Court No. CR97-777
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Overton*, Bumgardner and Lemons
On December 22, 1998 came the appellee, by counsel, and
filed a petition praying that the Court set aside the judgment
rendered herein on December 15, 1998, and grant a rehearing en banc
thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on December 15, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
____________________
*Judge Overton participated in the decision of this petition
for rehearing en banc prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as senior judge
pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
PHILLIP CLAY
OPINION BY
v. Record No. 2227-97-1 JUDGE LARRY G. ELDER
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
(William L. Taliaferro, Jr.; Rabinowitz,
Rafal, Swartz, Taliaferro & Gilbert, on
brief), for appellant. Appellant submitting
on brief.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Phillip Clay (appellant) was convicted in a bench trial of
two counts of robbery and two counts of the related use of a
firearm in the commission of robbery. On appeal, he contends
that the evidence was insufficient to prove he committed two
robberies rather than one and that the second firearm conviction,
contingent upon the second robbery conviction, therefore also
must fail. For the reasons that follow, we agree and reverse the
challenged robbery and related firearm convictions.
I.
FACTS
On November 17, 1996, William Vandegrift and Jason Guise
were walking from a grocery store to Vandegrift's house in the
City of Virginia Beach when they heard a car approaching them
from behind. Appellant and Khayree Darton exited the car,
approached Vandegrift and Guise, and asked, "Don't we know you?"
Vandegrift continued walking toward his house. Guise
stopped and began talking with appellant and Darton. Guise then
called Vandegrift to come back. Vandegrift returned to where the
three were standing. Vandegrift and Guise both testified that
appellant pointed a small handgun at Guise's chest and said,
"Just give me all your stuff." Appellant removed Guise's coat
from his body. Then appellant turned the gun toward Vandegrift
as Darton patted Vandegrift down, but Vandegrift "didn't have
nothing on [him]."
Both Vandegrift and Guise testified that, when appellant
took Guise's coat, it contained two twenty-dollar bills belonging
to Vandegrift, which Guise was holding for him. Vandegrift
testified that when appellant pointed the pistol at Guise,
Vandegrift and Guise were standing "almost shoulder to shoulder."
Appellant and Darton then returned to their car with Guise's
jacket and drove away.
Detective John Mentus interviewed appellant three days
later. Detective Mentus testified that appellant admitted he and
several friends had approached Vandegrift and Guise with the
intention of obtaining money and that he had used a gun to take
Guise's coat.
At trial, appellant testified that he had been riding in a
car with Darton and two other men. Appellant denied having a gun
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or participating in the robbery of Vandegrift and Guise and said
he did not make the statements that Detective Mentus attributed
to him.
II.
ANALYSIS
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
sufficient to prove guilt beyond a reasonable
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986).
Robbery is a larceny from the person accomplished by
violence or intimidation. See Butts v. Commonwealth, 145 Va.
800, 811, 133 S.E. 764, 766 (1926); Nelson v. Commonwealth, 12
Va. App. 268, 270, 403 S.E.2d 384, 386 (1991) (defining larceny);
see also Graves v. Commonwealth, 21 Va. App. 161, 167, 462 S.E.2d
902, 905 (1995), aff'd on reh'g en banc, 22 Va. App. 262, 468
S.E.2d 710 (1996) (holding that simple larceny is a
lesser-included offense of robbery). The common law defines
robbery as "'[1] the taking, with intent to steal, [2] of the
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personal property of another, [3] from his person or in his
presence, [4] against his will, by violence or intimidation.'"
Jordan v. Commonwealth, 2 Va. App. 590, 595, 347 S.E.2d 152, 155
(1986) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211
S.E.2d 71, 72 (1975)). In order to constitute robbery, the
property taken need not belong to the possessor, as long as the
possessor has a claim of right to the property that is superior
to that of the robber. See Johnson, 215 Va. at 496, 211 S.E.2d
at 72.
Appellant does not challenge the sufficiency of the evidence
to prove he robbed Guise of his jacket and its contents. Rather,
he challenges the separate conviction for robbing Vandegrift,
which was based on the presence of the forty dollars of
Vandegrift's money in Guise's coat at the time of the robbery.
Appellant contends the evidence was insufficient to prove he
(1) took property from Vandegrift's person or presence; (2) used
the threat of force or intimidation to effect the taking; and
(3) acted with the requisite intent because he did not know
Vandegrift's money was in Guise's jacket.
We agree with appellant's third contention--that the
evidence failed to prove he intended to rob Vandegrift by taking
Guise's jacket.
To constitute robbery, the act must be done
with a specific criminal intent existing at
the time of the commission of the act. . . .
If the criminal intent did not exist when
the alleged offense was committed, the crime
has not been established. The intent
subsequent to the taking is immaterial.
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Jones v. Commonwealth, 172 Va. 615, 618-19, 1 S.E.2d 300, 301
(1939) (emphasis added). "When a criminal offense consists of an
act and a particular [intent], both the act and [intent] are
independent and necessary elements of the crime that the
Commonwealth must prove beyond a reasonable doubt." Hunter v.
Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993)
(en banc).
Proving intent by direct evidence is often impossible. See
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Like any other element of a crime, it may be proved by
circumstantial evidence, as long as such evidence excludes all
reasonable hypotheses of innocence flowing from it. See Rice v.
Commonwealth, 16 Va. App. 370, 372, 429 S.E.2d 879, 880 (1993).
Circumstantial evidence of intent may include the conduct and
statements of the alleged offender, and "[t]he finder of fact may
infer that [he] intends the natural and probable consequences of
his acts." Campbell v. Commonwealth, 12 Va. App. 476, 484, 405
S.E.2d 1, 4 (1991) (en banc). In addition, whether an accused
has knowledge of particular facts when he engages in certain
conduct or a motive to engage in that conduct may be relevant in
determining intent, even where knowledge and motive are not
elements of the offense. See Charles E. Friend, The Law of
Evidence in Virginia § 12-6 (4th ed. 1993); see also Robinson v.
Commonwealth, 228 Va. 554, 558, 322 S.E.2d 841, 843 (1984)
("'[B]efore a fact or circumstance is admissible in evidence
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against a party to show motive, such fact or circumstance must be
shown to have probably been known to him, otherwise it could not
have influenced him, for a man cannot be influenced or moved to
act by a fact or circumstance of which he is ignorant.'" (quoting
Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E. 193, 195
(1912)).
Because robbery requires proof of a simple larceny in
addition to other elements, see Graves, 21 Va. App. at 167, 462
S.E.2d at 905, principles of law relevant to larceny find equal
application here. Ordinarily, in proving a larceny, proof of
"the wrongful taking of property in itself imports the animus
furandi" or the intent to steal, Skeeter v. Commonwealth, 217 Va.
722, 725, 232 S.E.2d 756, 758 (1977), and the fact finder "may
infer the [criminal] intent from the immediate asportation and
conversion of the property in the absence of satisfactory
countervailing evidence by the . . . [defendant]." Pierce v.
Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). This
principle is based on the inference, set out above, that one
intends the natural and probable consequences of his acts.
However, under the facts of this case, we hold that the
inference of intent to steal that arises from the wrongful taking
of property establishes only a single, wrongful intent
co-existing with the taking. To hold that the taking of a single
item from the actual possession of a single victim--which item,
unbeknownst to the robber, happens to contain property that is
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owned by some other person present at the scene and that remains
constructively in that other person's possession--also implies
the animus furandi to support a second robbery conviction would
improperly relieve the Commonwealth of its burden of proving
intent to steal from the second victim.
Here, the record contains no evidence permitting the
inference that appellant intended to take property belonging to
more than one person by the single act of taking Guise's jacket.
The evidence showed that appellant and Darton had discussed
obtaining money from Guise and Vandegrift before approaching them
on the street and that Darton patted Vandegrift down while
appellant held both victims at gunpoint, permitting the inference
that appellant and Darton may have intended to rob Vandegrift
1
directly. However, the pat down of Vandegrift yielded nothing.
Although Vandegrift retained constructive possession of the
money, it was in Guise's actual possession, inside his coat, at
1
The evidence may have been sufficient to prove attempted
robbery of Vandegrift. An attempt consists of the intent to
commit the crime and the doing of some direct, ineffectual act
toward the commission of the offense. See Sizemore v.
Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978).
Here, the fact finder may have been presented with ample evidence
of appellant's intent to rob Vandegrift at the time Vandegrift
was first confronted by the two men. The act of patting down
Vandegrift may have provided sufficient evidence of a direct,
ineffectual act toward the commission of the robbery of
Vandegrift. However, the evidence fails to show that appellant
intended to rob Vandegrift when he took Guise's jacket or, in the
words of the dissent, that appellant's intent to steal from
Vandegrift "actuated" the taking of Guise's jacket. Rather, the
evidence shows only that intent to steal from Guise actuated the
taking of the jacket.
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the time of the taking. Therefore, the mere fact of its taking
does not permit the inference that appellant intended to rob
Vandegrift by taking Guise's jacket. Evidence that appellant
knew Vandegrift's property was in Guise's jacket may have
supported the inference that appellant intended to rob Vandegrift
as well as Guise when he took Guise's jacket. However, the
record here is devoid of any evidence that appellant had such
knowledge. Therefore, the evidence is insufficient to prove
appellant intended to rob Vandegrift when he took Guise's jacket.
Such a result does not conflict with this Court's holdings
in Jordan, 2 Va. App. 590, 347 S.E.2d 152, and Sullivan v.
Commonwealth, 16 Va. App. 844, 433 S.E.2d 508 (1993) (en banc).
As this Court held in Jordan, "the appropriate 'unit of
prosecution' is determined by the number of persons from whose
possession property is taken separately by force or
intimidation." 2 Va. App. at 596, 347 S.E.2d at 156 (emphasis
added) (analyzing whether actions of accused constituted one
robbery or two for purposes of resolving double jeopardy
challenge). In Jordan, we upheld the two robbery convictions of
the accused because, although he took money belonging to only one
entity--a fast-food restaurant--he used threats to obtain
separate quantities of the restaurant's money from two different
employees. Id. at 597, 347 S.E.2d at 156. Jordan forced one
employee to "turn over the money in a cash register" and another
employee to "turn over [the restaurant's] money from [the
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employee's] pockets." Id. Under the facts of that case, we
held, "the evidence clearly show[ed] that both employees were
subjected to the threat of violence by the presenting of firearms
as money was taken from each of them." Id. (emphasis added).
In Sullivan, we rejected a double jeopardy challenge to dual
robbery convictions where the accused robbed two video store
employees. Although only one employee actually "physically
surrendered" the money, both employees "were custodians of the
store's money and jointly possessed it," and the accused forced
both "to assist in the collection and surrender of the money."
16 Va. App. at 848, 433 S.E.2d at 510.
Because Jordan involved two actual takings of money from two
individuals with a superior claim of right to the money through
the use of violence or intimidation, the evidence proved that the
accused intended two takings, even though the money belonged to a
single entity. Likewise, we held in Sullivan that the evidence
was sufficient to prove the accused intended two robberies and
accomplished two takings, even though only one employee actually
"physically surrendered" the money. The accused had constructive
knowledge that the two video store employees had a superior claim
of right to their employer's money, and he forced one employee to
help the second employee gather the store's money from various
locations. In appellant's case, in contrast to Jordan and
Sullivan, the evidence was insufficient to prove a second robbery
because it did not prove appellant intended to take any of
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Vandegrift's property contemporaneously with the taking of
Guise's coat.
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For these reasons, we reverse appellant's convictions for
robbing Vandegrift and for using a firearm in the commission of
that robbery.
Reversed.
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Lemons, J., dissenting.
Because the evidence and the law support the convictions, I
dissent.
Clay argues that the evidence was insufficient as a matter
of law to sustain his convictions for robbery of Vandegrift and
use of a firearm in the commission of that robbery.
Specifically, Clay argues: (1) no threat of force or
intimidation was used against Vandegrift; (2) no property was
taken from Vandegrift's person or presence; and (3) because he
did not know Vandegrift's money was contained in the jacket, he
did not have the requisite criminal intent.
When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth. Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990). On appeal, the decision of a trial court
sitting without a jury is afforded the same weight as a jury's
verdict and "will not be disturbed by us unless plainly wrong or
without evidence to support it." King v. Commonwealth, 217 Va.
601, 604, 231 S.E.2d 312, 315 (1977).
Robbery is a common law crime against the person, which is
proscribed statutorily by Code § 18.2-58. Hairston v.
Commonwealth, 2 Va. App. 211, 214, 343 S.E.2d 355, 357 (1986).
Robbery at common law is defined as,
the taking, with the intent to steal, of the
personal property of another, from his person
or in his presence, against his will, by
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violence or intimidation. The phrase, ". . .
of the personal property of another, from his
person or in his presence . . ." has been
broadly construed to include the taking of
property from the custody of, or in the
actual or constructive possession of,
another.
Crawford v. Commonwealth, 217 Va. 595, 597, 231 S.E.2d 309, 310
(1977) (quoting Johnson v. Commonwealth, 215 Va. 495, 496, 211
S.E.2d 71, 72 (1975)).
Clay's contention that no threat of force or intimidation
existed to support the conviction for robbery of Vandegrift and
the related charge of use of a firearm in the commission of that
robbery is belied by sufficient evidence in the record. Not only
did Clay point a firearm at Guise while Vandegrift was standing
"almost shoulder to shoulder," Clay also pointed the weapon at
Vandegrift while Darton conducted a "pat down" of Vandegrift.
Clay argues that when he removed Guise's jacket he did not
rob Vandegrift because he did not take property from Vandegrift's
person or presence. For common law robbery, "the taking must be
from what is technically called the 'person'; the meaning of
which . . . is, not that it must be from . . . actual contact
. . .[with] the person, but it is sufficient if it is from . . .
[that person's] personal protection and presence." Falden v.
Commonwealth, 167 Va. 542, 546, 189 S.E. 326, 328 (1937) (quoting
Houston v. Commonwealth, 87 Va. 257, 264, 12 S.E. 385, 387
(1890)). The term "in the presence" is "not so much a matter of
eyesight as it is one of proximity and control: the property
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taken in the robbery must be close enough to the victim and
sufficiently under his control that, had the latter not been
subjected to violence or intimidation by the robber, he could
have prevented the taking." LaFave, Wayne R. & Scott, Jr.,
Austin W., Criminal Law § 8.11, at 780 (2d ed. 1986).
Clay argues that because he did not know the jacket
contained Vandegrift's money, he lacked the criminal intent to
rob Vandegrift. In Jordan v. Commonwealth, 2 Va. App. 590, 347
S.E.2d 152 (1986), we upheld the defendant's convictions of two
counts of robbery and two counts of the use of a firearm in the
commission of a felony. In Jordan, the defendant forced several
employees of a fast-food restaurant to turn over their employer's
money. We held that, although the money taken belonged to the
restaurant, the defendant's multiple robbery convictions arising
from this incident did not violate the double jeopardy
prohibition. Rather, we held that the appropriate "unit of
prosecution" was determined by the number of persons from whose
possession property is taken separately by force or intimidation.
Id. at 596, 347 S.E.2d at 156 (emphasis added). Similarly, we
found that the firearm convictions were "separate and distinct
offenses." Id. at 596, 347 S.E.2d at 156.
In Sullivan v. Commonwealth, 16 Va. App. 844, 433 S.E.2d 508
(1993), we upheld the defendant's convictions of two counts of
robbery and two counts of the use of a firearm in the commission
of robbery where two employees of a video store were held at
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gunpoint but only one employee gathered the money and delivered
it to the defendant. We found that both employees were
"custodians of the store's money and jointly possessed it." Id.
at 848, 433 S.E.2d at 510. Additionally, in Pritchard v.
Commonwealth, 225 Va. 559, 562, 303 S.E.2d 911, 913 (1983), the
Virginia Supreme Court affirmed a robbery conviction and stated
that "[t]he owner of personal property may deliver it to another
upon conditions, or in circumstances, which give the recipient
bare custody of the property. Constructive possession remains in
the owner." (Emphasis added).
Larceny is a lesser-included offense of robbery. Harris v.
Commonwealth, 23 Va. App. 311, 477 S.E.2d 3 (1996). Larceny is
defined as "the wrongful or fraudulent taking of personal goods
of some intrinsic value belonging to another, without his assent
and with the intention to deprive the owner thereof permanently."
Cullen v. Commonwealth, 13 Va. App. 182, 186, 409 S.E.2d 487, 489
(1991). The animus furandi, or the intent to steal, "is an
essential element in the crime of larceny." Black's Law
Dictionary 88 (6th ed. 1990).
In Virginia, "the wrongful taking of property in itself
imports the animus furandi." Skeeter v. Commonwealth, 217 Va.
722, 725, 232 S.E.2d 756, 758 (1977). Under the common law of
Virginia, animus furandi means "an intent to feloniously deprive
the owner permanently of his property . . . [b]ut 'feloniously'
in this [context] simply means 'with criminal intent.'" Pierce
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v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 31 (1964). The
fact finder "may infer the felonious intent from the immediate
asportation and conversion of the property, in the absence of
satisfactory countervailing evidence by the . . . [defendant]."
Id. at 533, 138 S.E.2d at 31.
Clay argues that there was only one taking; consequently,
there can be only one robbery. He is wrong; two takings
occurred. The taking of the jacket from Guise was the first
taking. The taking of Vandegrift's money in the jacket pocket
was the second taking. In the second taking, Guise had bare
custody of the money; Vandegrift retained constructive
possession. Additionally, the animus furandi in the second
robbery is provided by Clay's clearly demonstrated intent to take
items from both Guise and Vandegrift and is further supported by
Clay's demand "[j]ust give me all your stuff" followed by a "pat
down" of Vandegrift. Finally, the animus furandi is provided by
inference from the asportation and conversion of the property, in
the absence of satisfactory countervailing evidence introduced by
the defendant.
The majority concludes "the evidence was insufficient to
prove a second robbery because it did not prove appellant
intended to take any of Vandegrift's property contemporaneously
with the taking of Guise's coat." The majority misapprehends a
basic concept in criminal law. The issue is not whether the mens
rea and the actus rea are contemporaneous; rather, it is whether
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the mens rea and the actus rea concur. However, "concurrence in
time . . . is neither required nor sufficient; the true meaning
of the requirement that the mental fault concur with the act or
omission is that the former actuates the latter." See LaFave &
Scott, supra at 267-68 (emphasis added). The rule is that "mere
coincidence in point of time is not necessarily sufficient, while
the lack of such unity is not necessarily a bar to conviction."
Id. at 268.
Where the state of mind to commit a criminal act exists
before the act is committed, in order to find the requisite
concurrence that actuates the commission of the act, the actor's
state of mind must not have been abandoned. Id. at 270. An
example of abandonment of criminal intent exists where A intends
to kill B but changes his mind. If A mistakenly shoots B moments
later in a hunting accident, he will not be guilty of murder
because "there is no concurrence of the mental and physical
elements." Id. Once the mental state has been abandoned, it can
no longer actuate the commission of the crime and no concurrence
exists.
When Clay and Darton approached Vandegrift and Guise, Clay
had the intent to rob both men. Clay pointed a handgun at Guise
and said, "[j]ust give me all your stuff." Clay then took
Guise's jacket. Clay turned to Vandegrift and pointed the gun at
him as Darton "patted him down." Clay intended to rob both
Vandegrift and Guise of their possessions and his state of mind
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was not abandoned at the time he committed the physical act of
taking Guise's jacket that contained Vandegrift's money. Clay's
mental state actuated the taking, and his intent to rob both men
was never abandoned; therefore, Clay is guilty of the robbery of
Vandegrift as well as Guise.
The evidence was sufficient to find that Clay robbed
Vandegrift and that he used a firearm in the commission of that
robbery. Clay used a gun to intimidate Vandegrift and to take
Vandegrift's property from his presence. Clay intended to take
the money contained in the jacket, as shown by the circumstances
and by the taking itself, and as further shown by his statements
to Guise, Vandegrift, and Detective Mentus. For the foregoing
reasons, I would affirm the convictions.
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